[2022] KEHC 128 (KLR)

Kabundu & 3 others v Public Service Commission & 6 others; Amani National Congress Party & 10 others (Interested Parties) (Constitutional Petition E250 of 2020) [2022] KEHC 128 (KLR) (Constitutional and Human Rights) (14 February 2022) (Judgment)

Patrick Kabundu & 3 others v Public Service Commission &6 others; Amani National Congress Party & 10 others (Interested Parties) [2022] eKLR

Neutral citation: [2022] KEHC 128 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E250 of 2020

AC Mrima, J

February 14, 2022

Between

Patrick Kabundu

1st Petitioner

Mutuma Caleb Mwiti

2nd Petitioner

Antony Matho Fondo

3rd Petitioner

Mutei Caleb

4th Petitioner

and

Public Service Commission

1st Respondent

Office of Registrar of Political Parties

2nd Respondent

Parliament of Kenya

3rd Respondent

Attorney General

4th Respondent

Jubilee Party

5th Respondent

Senate of the Republic of Kenya

6th Respondent

Cabinet Secretary National Treasury

7th Respondent

and

Amani National Congress Party

Interested Party

Ford Kenya Party

Interested Party

Narc - Kenya Party

Interested Party

Kenya African National Union (KANU) Party

Interested Party

Orange Democratic Movement (ODM) Party

Interested Party

Wiper Democratic Movement Party

Interested Party

Office of Auditor General

Interested Party

Political Parties Disputes Tribunal (PPDT)

Interested Party

Law Society of Kenya

Interested Party

International Commission of Jurists (ICJ) Kenya

Interested Party

Office of the Chief Justice of Kenya

Interested Party

Political parties have the discretion to choose how to spend the money allocated to them.

Reported by Ribia John

Jurisdiction– jurisdiction of the Employment and Labour Relations Court – jurisdiction to determine disputes on the infringement of fundamental rights and freedoms - whether the Employment and Labour Relations Court had the jurisdiction to deal with disputes relating to infringement of rights and fundamental freedoms – Constitution of Kenya, 2010 article 165(3)(d)(i); Employment and Labour Relations Act, Act No. 20 of 2011, section 12. Statutes– interpretation of statutes – holistic interpretation – objective test – purposive tests – applicability of the tests - what were the principles that guided the court in interpreting legislation?Constitutional Law– Public Service Commission – functions – independence - whether the Public Service Commission was an independent constitutional commission - whether the Public Service Commission was under the control and supervision of the executive – Constitution of Kenya, 2010, articles 130, 233, 234(2), (4), (5), 249(1) and 252(1).Constitutional Law– state officers - Registrar and Assistant Registrars of Political Parties - whether the Registrar and Assistant Registrars of Political Parties were state officers – whether the appointment of the Registrar and Assistant Registrar of Political Parties by the Public Service Commission was unprocedural – Constitution of Kenya, 2010, article 260. Constitutional Law- arms of government – judiciary – tribunals – Political Parties Disputes Tribunal – devolution of the Political Parties Disputes Tribunal - whether the court could issue orders against the Chief Justice to devolve the Political Parties Disputes Tribunal so as to ease the inconvenience of litigants all across the country who have to adjudicate their disputes before the Tribunal at Nairobi.

Brief facts The petitioners’ sought to impugn the constitutionality of sections 17, 25, 26, 27 and 28 (the impugned sections) of The Political Parties (Amendment) Act, 2016 Act No. 2 of 2016 (the Act). The impugned sections formed the basis for appointment of Registrar of Political Parties. The petitioners contended that section 17 of the Act amended sections 25, 26, 27, 28 and 34A of the Political Parties Act thus donating the power to the Public Service Commission ( PSC) to conduct the process of recruitment, interviewing and appointment of the Registrar and the Assistant Registrars of the Political Parties in Kenya (the Registrar). The Petitioners further contended that the PSC was under the Executive through the Cabinet Secretary, Ministry of Gender and Public Service and the Head of Civil Services and Secretary to the Cabinet who were both presidential appointees and as such, the amendment defeated the national values and principles of good governance as provided for under article 10 of the Constitution.The petitioners also sought for the Political Parties Disputes Tribunal to be devolved. They contended that to only have one Tribunal located in Nairobi greatly inconvenienced Kenyans away from Nairobi as they had to travel long distances, spending lots of money and time to be able to access the services of the Tribunal.

Issues

Whether the Employment and Labour Relations Court had the jurisdiction to deal with disputes relating to infringement of rights and fundamental freedoms.

What were the principles that guided the court when interpreting legislations?

Whether the Public Service Commission was an independent constitutional commission?

Whether the Public Service Commission was under the control and supervision of the executive?

Whether the Registrar and Assistant Registrars of Political Parties were state officers within the meaning of article 260 of the Constitution.

Whether the petitioners had met the threshold/ standard of proof to impugne the manner in which the Registrar and Assistant Registrars of Political Parties were appointed into office by the Public Service Commission.

Whether the court could issue orders against the Chief Justice to devolve the Political Parties Disputes Tribunal so as to ease the inconvenience of litigants all across the country who had to adjudicate their disputes before the Tribunal at Nairobi.

Held

Jurisdiction was what gave a court or a tribunal the power, authority and legitimacy to entertain a matter before it. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision was amenable to setting aside ex debito justitiae.

The Employment and Labour Relations Court had jurisdiction to entertain any dispute or any contemplated dispute under section 12(1) of the Employment and Labour Relations Act but the dispute between the parties had to be related to their employment and/or touching on labour relations. The jurisdiction of the Employment and Labour Relations Court was not limited to the determination of disputes arising out of a contract of employment between an employee and an employer, the court could also determine any constitutional violations of the rights of any party arising from an employee-employer relationship. However, for the court to entertain a petition premised on the breach of a party’s fundamental rights under the Constitution, the alleged constitutional breach had to be ancillary and incidental to the matters contemplated under section 12 of the Act.

In the absence of an employee-employer relationship, the court that had jurisdiction to entertain and determine the issues raised in the consolidated petitions was in the High Court. The High Court had jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights had been violated, infringed or threatened; and it also had jurisdiction to determine whether any law was inconsistent with or in contravention of the Constitution.

The respondents had not demonstrated any employer-employee relationship between any of the petitioners and the respondents. The issues raised in the petition had nothing to do with any of the matters falling within section 12 of the Employment and Labour Relations Act. Under article 165(3)(d)(i) of the Constitution, it was the High Court which had jurisdiction to determine whether any law was inconsistent with or in contravention of the Constitution.

The Constitution should have been interpreted in a holistic manner, within its context, and in its spirit. A purposive interpretation on the other hand acknowledged that the meaning of language was imprecise, and measured words against contextual, schematic, and purposive considerations. The purposive interpretation avoided the shortcomings of the literal approach, namely absurd interpretations or those that appeared to run counter to the purpose and functioning of the legislative regime.

A purposive interpretation should be given to statutes so as to reveal their true intention. The object of the court in interpreting legislation was to give effect so far as the language permitted to the intention of the legislature. Interpretation of any document involved identifying the intention of Parliament, the drafter, or the parties. That intention had to be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose.

In determining whether a statute was constitutional, the court was guided by three principles. The court would consider the objective which the limitation was designed to serve; the means chosen to attain the objective had to be reasonable and demonstrably justified, that was the proportionality test; and the effect of the limitation. On the objective test, for the court to establish that a limit was reasonable and demonstrably justified in a free and democratic society, the objective, which the measures responsible for a limit on a charter right or freedom were designed to serve, had to be of sufficient importance to warrant overriding a constitutionally protected right or freedom. It was necessary, at a minimum, that an objective related to concerns which were pressing and substantial in a free and democratic society before it could be characterized as sufficiently important.

On the proportionality test, once a sufficiently significant objective was recognized, then the party invoking had to show that the means chosen were reasonable and demonstrably justified. That involved a form of proportionality test. Although the nature of the proportionality test would vary depending on the circumstances, in each case courts were required to balance the interests of society with those of individuals and groups. There were three important components of a proportionality test. The measures adopted had to be carefully designed to achieve the objective in question. They ought not to have been arbitrary, unfair or based on irrational considerations. They had to be rationally connected to the objective.

The means, even if rationally connected to the objective in that first sense, should have impaired as little as possible the right or freedom in question.

There had to be a proportionality between the effects of the measures which were responsible for limiting the right or freedom, and the objective which had been identified as of sufficient importance

On the general effect of any measure impugned would be the infringement of a right or freedom; even if an objective was of sufficient importance, and the first two elements of the proportionality test were satisfied, it was possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure would not be justified by the purposes it was intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure was to be reasonable and demonstrably justified in a free and democratic society.

The Public Service Commission (PSC) was a creation of the Constitution. It was born out of article 233 of the Constitution, article 234(2), (4), (5) and 252(1) set out its powers and functions and article 249(1) set out its objects. The PSC was bound by the values and principles of public service under article 232 of the Constitution.

The PSC, as a constitutional commission was only subject to the Constitution and the law. It was an independent entity and it was not subject to direction or control by any person or authority. The fear by the petitioners of the executive arm of government overbearing itself on the PSC and the lack of independence of the PSC well taken care of by the Constitution. Even if the instant court was to assume that the fear was real, the Constitution provided for appropriate safeguards and remedies.

Article 130 of the Constitution provided for the composition of the executive. The executive was comprised of the President, the Deputy President and the Cabinet. Therefore, there was no constitutional commission which could operate as part of the executive under the Constitution. The petitioners’ position that the PSC was part of the executive arm of government was misplaced and a misapprehension of the law.

The struggle for the 2010 constitutional dispensation in Kenya took such a long time and costed the lives of some Kenyans. The journey also visited immense suffering to many others. The Constitution was a product of extreme hard work and it was what Kenyans wanted to be governed under. The Constitution had to be jealously defended by all and sundry as its calling in article 3. The people of Kenya had to also have faith in the institutions created under the Constitution. Such institutions had to be accorded room and support in discharging their mandates. Any dissatisfaction over the institutions had to be dealt with under the Constitution and the law. That was the essence of the rule of law as espoused in article 10 of the Constitution. General and unsubstantiated attacks and unfounded victimization of the institutions could not be in the best interests of such institutions and the Constitution which created them.

The positions of the Registrar and Assistant Registrars of Political Parties (the Registrars) were not provided for in the Constitution and therefore, the Registrars were not constitutional office holders. The Office of the Registrar (the Office) was a body corporate with perpetual succession and a seal and which was to be capable of suing and being sued in its corporate name. The office was also a State office within the meaning of article 260 of the Constitution. The Registrars were, hence, both state officers and public officers and, they were also bound by the Constitution and the law. They took oath or affirmation of office before assumption of duties and were, as well, liable to removal from office. Both the Constitution and the law had it that the Office of Registrar, as a state office, was to be independent and was not to be subject to direction or control of any person or authority.

The Registrar was not the only state and public officer who was appointed through the PSC. They were many others including principal secretaries and other senior government officers in the public service. The petitioners seemed not to have any problem with the appointment of the rest of the senior government officers who were recruited through the PSC, but the Registrar. The petitioners had, however, not given any reasons for the distinction. The court was called upon to remain vigilant and not to perpetrate an unjustified discrimination. For the petitioners to succeed in their quest, it was incumbent upon them to tender evidence in singularly flouting the process of appointment of the Registrars who were among many other state officers whose appointments were made through the PSC.

There was no uniform mode of recruitment and appointment into public service. In some cases, the recruitments and appointments were through selection panels and in some through other entities. For instance, the appointment of the Hon. Chief Justice of the Republic of Kenya was through the Judicial Service Commission whereas the appointment of Commissioners of the Independent Elections and Boundaries Commission was done through a selection panel. For one to succeed in impugning a certain mode of appointment of officers into office, there had to be credible allegations and evidence of breach of the Constitution and the law in adopting that particular process.

The petitioners failed to prove the allegations. The standard of proof required in constitutional petitions was not attained. The petitioners had also failed to demonstrate how the appointment process contravened article 10 of the Constitution. The petitioners had not applied themselves to the criterion of determining the constitutionality of statutes.

Section 25 of the Political Parties Act recognised the office bearers of political parties as the national and county officials elected or nominated by a political party in accordance with the party constitutions. Once the Registrar allocated and disbursed the money to the qualifying parties, then its role ended there. The internal administration of political parties did not lie with the Registrar save in specific instances where the law designated some roles.

The manner in which the funds allocated to a political party were put to use was firmly within the confines of a political party. The law recognised the officials of the parties as both the national and county officials whether elected or nominated. The petitioners were members of a political party or parties. If they found difficulties in the manner of administration of the funds within their party or parties, then the law and the very parties provided for internal disputes resolution mechanism which the petitioners ought to utilise. The petitioners could not invite the court to manage the internal affairs of political parties.

Article 48 of the Constitution placed a duty on the State to ensure access to justice for all persons and, if any fee was required, it be reasonable and not to impede access to justice. To ensure that the Judiciary discharges its functions as called upon by the Constitution and the law, article 172 created the Judicial Service Commission as one of the constitutional commissions. One of the functions of the Judicial Service Commission was to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.

The Judicial Service Commission was in the process of recruiting more members of the Tribunal. Since the Judicial Service Commission was not a party , the court was not able to benefit from the plans the Commission had in place for the Tribunal. Nevertheless, the steps undertaken by the Judicial Service Commission, the Hon. Chief Justice of the Republic of Kenya was steadily championing her vision for the Judiciary. The vision was: Social Transformation through Access to Justice (STAJ).

The aspect of access to justice was, at the heart of the Hon. Chief Justice of the Republic of Kenya. It was common knowledge the Hon. Chief Justice took office just some few months ago. There was need for the court to exercise restraint and to accord the necessary players time as they dealt with the matter. It was imprudent to grant the prayers sought by the petitioners on the devolution of the Tribunal as at the time of the instant judgment.

Petition dismissed.

Orders Each party to bear their own costs.

Citations CasesEast Africa; Hassan, Ahmed Issack v Law Society of Kenya Disciplinary Tribunal & 2 othersPetition 151 of 2018; [2018] eKLR — (Mentioned)

Anarita Karimi Njeru v RepublicMiscellaneous Criminal Application 4 of 1979; [1979] eKLR — (Mentioned)

Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others Petition 371 of 2016; [2017] eKLR — (Mentioned)

Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others Petition 496 of 2013; [2013] eKLR — (Explained)

Kariuki,James Gacheru & 19 others v County Government of Mombasa & 56 others Petition 56 of 2016; [2019] eKLR — (Explained)

Federation of Women Lawyers Kenya (FIDA- K) & others v Attorney General & another Petition 102 of 2011; [2011] eKLR — (Explained)

Mito, George Olilo v Joyce Oduor Nyanjom & 4 othersPetition 69 of 2018; [2020] eKLR — (Explained)

Institute of Social Accountability & another v National Assembly & 4 others Petition No 71 of 2014; [2015] eKLR — (Explained)

Mwau, John Haron v Andrew Mullei & othersMiscellaneous Application 186 of 2006; [2009] eKLR— (Mentioned)

Juma, Nyamawi Ndungo & 5 others v Attorney General; Mombasa Law Society (Interested Party) Constitutional Petition 196 of 2018; [2019] eKLR — (Explained)

Justus Kariuki Mate & another v Martin Nyaga Wambora & another Petition 32 of 2014; [2015] eKLR — (Explained)

Kenya Youth Parliament & 2 others v Attorney General & 2 othersConstitutional Petition 101 of 2011; [2012] eKLR — (Mentioned)

Kizito, Mark Ngaywa v Minister of State for Internal Security and Provincial Administration & another Petition 4 of 2011; [2011] eKLR — (Explained)

Ndichu, Nick Githinji v Clerk, Kiambu County Assembly & another Petition 11 of 2014; [2014] eKLR — (Mentioned)

Okoiti, Okiya Omtatah& 2 others v Attorney General & 3 others Petition 58 of 2014; [2014] eKLR — (Mentioned)

Okoiti, Okiya Omtatah v Cabinet Secretary for Water and Irrigation & 6 others Petition 97 of 2016; [2016] eKLR — (Explained)

Okoiti, Okiya Omtatah v Selection Panel for the National Land Commission & 3 others; Gershom Otachi Bw’omanwa & 7 others (Interested Parties)Petition 162 of 2019; [2019] eKLR — (Explained)

Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others Civil Appeal 59 of 1993; [1998] eKLR — (Mentioned)

Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others Civil Appeal E084 of 2021; [2021] eKLR — (Explained)

Speaker of the Senate & another v Attorney-General & 4 othersAdvisory Opinion Reference No 2 of 2013; [2013] eKLR — (Mentioned)

Afubwa, Timothy Otuya & another v County Government of Trans Nzoia & 3 others Petition 4 of 2015; [2016] eKLR — (Explained)

Trusted Society of Human Rights v Attorney-General & others Petition No 229 of 2012; [2012] eKLR — (Explained)

Adieno, Wycliff Indalu v Attorney General & 2 others Petition 315 of 2014; [2014] eKLR — (Mentioned)

Nyabo v Attorney General of Tanzania [2001] EA 495 — (Explained)

Olum & another v Attorney General [2002] EA 508 — (Explained)

South Africa;Democratic Alliance v President of the Republic of South Africa 73 others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC) — (Explained)Zimbambwe;Biti & another v Minister of Justice, Legal and Parliamentary Affairs & another [2002] ZWSC 10 — (Explained)United Kingdom;Pepper v HartUKHL 3, AC 593, 3 WLR 1032 — (Explained)StatutesEast Africa; Constitution of Kenya, 2010 articles 2(1)(2)(4)(5)(6); 10(1)(2); 22(2)(b)(c); 23(3); 38; 48; 92; 93; 94; 95; 96; 156; 159(2); 165(3); 229; 233; 259; 262; 264 — (Interpreted)

Employment and Labour Relations Court Act, 2011 (Act No 20 of 2011) section 12 — — (Interpreted)

Law Society of Kenya (General) Regulations, 2018 (Act No 21 of 2014 Sub Leg) regulation 3 — (Interpreted)

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Advocates1. Mr Marwa, Learned State Counsel instructed by the Honourable Attorney General for 1st, 4th and 7th respondents.2. Mr Wakhokho for 2nd respondent.3. Miss Otieno for 3rd respondent.4. Mr Wambulwa for 6th respondent.

Judgment

Introduction: 1. The petition subject of this judgment raises pertinent issues on political parties and the electoral process in Kenya.

2. The petitioners who are litigating in public interest challenged the constitutionality of various provisions of the Political Parties Act and called for a raft of remedies in the nature of declarations and orders.

3. The petition is opposed.

The Parties: 4. The 1st petitioner herein, Patrick Kabundu, describes himself as the Mombasa County Branch Secretary of Jubilee Party. He is a Kenya citizen residing in Mombasa County.

5. The 2nd petitioner herein, Mutuma Caleb Mwiti, is a Kenya citizen hailing from Meru County and residing in Mombasa County.

6. The 3rd petitioner herein, Anthony Matho Fondo, is a Kenyan citizen from the Coast and residing in Mombasa County.

7. The 4th petitioner herein, Mutei Caleb, is a Kenya citizen from the Rift Valley and residing in Mombasa County.

8. The 1st respondent herein, Public Service Commission, is established under article 233 of the Constitutionas read together with Public Service Commission Act No 13 of 2012(hereinafter referred to as ‘thePSC Act’).

9. The 2nd respondent herein is the Office of the Registrar of Political Parties. It is established by section 33 of the Political Parties Act whose functions according to section 34 thereof.

10. The 3rd respondent herein, The Parliament of Kenya, is established under article 93 of the Constitution. It exercises legislative authority on behalf of the People of Kenya as provided for under articles 94 and 95 of the Constitution.

11. The 4th respondent herein, The Hon Attorney General, is the principal legal advisor of the Government of Kenya whose duty is to promote, protect and uphold the rule of law and defend public interest. It is established under article 156 of the Constitution.

12. The 6th respondent herein is the Senate. It is established under article 93(1) of the Constitution. It represents the counties and serves to protect the interests of the counties and their Governments as per article 96(1) of the Constitution.

13. The 7th respondent is the Cabinet Secretary in charge of the National Treasury. It is in charge of the National Government in formulating financial and economic policies and oversees effective coordination of the National Government financial operations.

14. The 1st to 6th interested parties are Amani National Congress Party, Ford- Kenya Party, Narc-Kenya party, Kenya African National Union (KANU) Party, Orange Democratic Movement Party (ODM) and Wiper Democratic Movement Party which are political parties within the meaning of the Political Parties Act and article 260 of the Constitution.

15. The 7th interested party herein, The Auditor General, is a constitutional office created under article 229 of the Constitution. Its mandate for purposes of this suit is to inter alia audit and report on the financial matters relating to political parties funded from public funds.

16. That 8th interested party herein, the Political Parties Disputes Tribunal is established under section 39 of Political Parties Act. It inter alia hears appeals against decisions made by the Registrar of Political Parties and rules on disputes between members of a party or between members of a coalition of parties.

17. The 9th interested party herein, The Law Society of Kenya, is established under section 3 of the Law Society of Kenya Act, No 24 of 2014 (hereinafter referred to as ‘the LSK Act’). Section 4 of the LSK Act sets its core functions and objects to include, assisting the Government and the courts in matters relating to legislation, the administration of justice and the practice of law in Kenya, upholding the Constitution and advancing the rule of law.

18. The 10th interested party herein, the Kenyan Section of the International Commission of Jurists, is a non-governmental and a non-profit organization that promotes human rights, justice and democracy in Kenya and around African through the application of legal expertise and international best practices.

19. The 11th interested party herein is the Honourable Chief Justice of the Republic of Kenya.

20. In view of the nature of this matter, this court will now look at the respective parties’ cases.

The Petitioners’ Case: 21. The petitioners’ amended petition is dated February 4, 2021. It sought to impugn the constitutionality of sections 17, 25, 26, 27 and 28 (hereinafter referred to as ‘the impugned sections’) of the Political Parties (Amendment) Act, 2016 Act No 2 of 2016 (hereinafter referred to as ‘The 2016 Amendment Act’).

22. The petitioners also filed two applications seeking various interim reliefs which applications were both withdrawn on November 18, 2020 so as to pave way to the hearing of the Petition.

23. The Petition primarily revolved around section 17 of the 2016 Amendment Act that amended section 34A of Political Parties Act.

24. In a background reflection, the petitioners averred that on 1st May, 2020 the 1st petitioner herein, Patrick Kabundu, filed Petitions to Parliament (read ‘The National Assembly’) and The Senate under article 119 of the Constitutionseeking to have “a repeal of part of the Political Parties (Amendment) Act 2016, Act No 2 of 2016”.

25. According to the petitioners, the 2016 Amendment Act contained the impugned sections that formed the basis for appointment of Registrar of Political Parties. The Petitioners contended that section 17 of the 2016 Amendment Act amended sections 25, 26, 27, 28 and 34A of the Political Parties Act thus donating the power to the Public Service Commission (hereinafter referred to as ‘the PSC’ or ‘the Commission’) to conduct the process of recruitment, interviewing and appointment of the Registrar and the Assistant Registrars of the Political Parties in Kenya (hereinafter referred to as ‘the Registrar’ and ‘the Assistant Registrars’) respectively.

26. The petitioners further contended that the PSC is under the Executive through the Cabinet Secretary, Ministry of Gender & Public Service and the Head of Civil Services & Secretary to the Cabinet who are both Presidential appointees and as such, the amendment defeated the national values and principles of good governance as provided for under article 10 of the Constitution.

27. The petitioners posited that the office of the Registrar is an independent office and section 17 of the 2016 Amendment Act violated that independence in giving the Commission the power to recruit the Registrars.

28. The petitioners further posited that political parties in Kenya are the vehicles of representative democracy and articulate the interests of their members.

29. The petitioners averred that the under the Political Parties Act, the Registrar carries out vital functions including the administration the Political Parties Fund, co-ordinating members of Political Parties Liaison Committee, ensuring publication of audited annual accounts of political parties, maintaining a register of political parties and symbols of the political parties, ensuring and verifying that no person is a member of more than one political party and investigating complaints.

30. It was the petitioners’ case that on January 4, 2013 the Political Parties Amendment No 50 of 2012 replaced the Commission by introducing a Selection Panel which comprised of a Chairperson nominated by the President, a nominee by the Institute of Certified Public Accountants of Kenya, a nominee by the Law Society of Kenya, a nominee by the Association of Professional Societies in East African, two persons nominated by the National Assembly and two persons nominated by the Senate.

31. The petitioners averred that when the current Government took office it did not uphold the Constitution, but instead passed the unconstitutional 2016 Amendment Act which watered down the Political Parties Act on the issue of appointment of the Registrar and the Assistant Registrars.

32. The petitioners further averred that the replacement of the several professional bodies in the Selection Panel with the Commission raised serious questions of law as there was abuse of power that defeated the political order, management and regulation of political parties.

33. It was, therefore, contended that the appointment of the current Registrars remained irregular and unconstitutional and that all what the Registrars have undertaken and continue to, is without any legal backing.

34. On the basis of the foregoing, the petitioners contended that the National Treasury should not allow public funds through the Political Parties Fund to be administered by the Registrars who are illegally in office.

35. In the main, the petitioners prayed for the following orders: -a.A declaration that Kenya Gazette supplement No 112 Act) No 21 the political amendment Act No 2 Act of 2016 Section 17 amendment of section 34 A of No 11 of 2011 is unconstitutional, null and void in violation and infringement of the 2010 constitution.b.A declaration that Kenya Gazette supplement No 112 (act) No 21 the political amendment Act No 2 Act of 2016 section 25, 26, 27and 28 amending the fourth schedule to No 11 of 2011, fifth schedule to No. 11 of 2011, sixth schedule of No 11 of 2011 and amendment of seventh schedule No 11 of 2011 is unconstitutional, null and void in violation and infringement of the 2010 constitution.B,1)A declaration that the appointments to the office of registrar of political parties pursuant to the political amendment Act No 2 Act of 2016 section 17 amendment of section 34 A, 25, 26, 27 and 28 amending the fourth schedule to No 11 of 2011, fifth schedule to No 11 of 2011, sixth schedule of No 11 of 2011 and amendment of seventh schedule No 11 of 2011 is unconstitutional, null and void in violation and infringement of the 2010 Constitution.d.An order of certiorari to remove into this Honourable court for the purpose of quashing of gazette notice No 3543 dated 15th may 2020 by the 1st respondent in the appointment of the registrar of political parties and 3 deputy registrars of political parties or being founded on the wrong statute.e.An order of certiorari to remove into this Honourable court for the purpose of quashing of gazette notice No 8089 and 8090 both dated 29th September 2020 by the 5th respondent Jubilee party leader HE The President Uhuru Muigai Kenyatta in appointment of the registrar of political parties and 3 deputy registrars of political parties in contravention of the constitution 2010. f.That the conourable court orders or directs the 3rd respondent, the Parliament of Kenya (National Assembly) and the 6th respondent the Senate (Senate Assembly) to both amend section 25 of the Political Parties Act, 2011 Act No 11 of 2011 to provide for a formula for devolving of the Political Parties Fund in line with the spirit and letter of the Constitution 2010 with a view to promote democracy, social justice and the rule of law as envisaged by the framers of the Constitution.g.That the honourable court orders or directs the 3rd respondent, the Parliament of Kenya (National Assembly) and 6th respondent, the Senate (Senate Assembly) to formulate a legislation with the aim of amending or reviewing the principal Political Parties Act 2011 section 40(2) to include devolution of the IDRM process to party branches in compliance with article 48, 38 and 159 of the Constitution 2010. h.That the honourable court orders or directs the 11th interested party, the office of the Chief Justice of Kenya to issue a gazette notice devolving the jurisdiction of the political party tribunal to courts of equal status, In compliance with article 6(3), 48, 38 and 159 of the Constitution 2010 and the political parties Act Amendment No 21 0f 2016 section 41(3A)i.That the honourable court to direct the auditor general to audit the accounts of political parties and issue a public report.j.That the honourable court be pleased to issue a conservatory order stopping/staying the 7th respondent the cabinet secretary national treasury from releasing the political funds to the office of the registrar of political parties until it’s properly constituted in law.k.That the honourable court be pleased to issue a conservatory order stopping the 2nd respondent the current office of registrar of political parties from performing their role being a public body that is not properly constitutional.l.That may grant any other pray that it may deem fit in this petition.m.The costs of the said petition.

The Petitioners’ Submissions: 36. The petitioners filed three sets of written submissions dated September 25, 2020, February 4, 2021 and March 8, 2021 respectively.

37. In buttressing the unconstitutionality of the impugned sections, the petitioners made reference to the memorandum of objects and reasons of the Political Parties Bill, 2011 and submitted that the Bill sought to address the challenges faced under the old Constitution by removing nomination and recruitment process of the Registrar of Political Parties from the Commission in order to advance democracy and good governance by putting in place an independent office not subject to the direction and control of any person.

38. It was further submitted that when the law that required the Registrars to be appointed through a Selection Panel was in place, the Hon Attorney General tabled The StatuteLaw (Miscellaneous Amendment) Bill, 2012 on 2nd May, 2012 which amended section 35 of the Political Parties Act by substituting the Selection Panel with the Commission.

39. The Petitioners submitted that on 20th November, 2012 Hon. Jakoyo Midiwo (now deceased) through The Political Parties (Amendment) Bill, 2012 successfully re-introduced section 35 of the Political Parties Act. When the Bill was assented to law as the Political Parties (Amendment) Act, 2012, former section 35 was inserted as section 34A of the Political Parties Act.

40. On the foregoing basis, the Petitioners submitted that the Commission erred in advertising for vacancies for the positions of the Registrars.

41. The petitioners also submitted that they petitioned Parliament under article 119 of the Constitutionbut their Petition was never considered.

42. As a result of the above, the petitioners further submitted that the respondents violated articles 2(1), (2), (4), (5) and (6), 10(1) and (2), 22(2)(b) and (c), 23(3), 38, 48, 92, 159(2), 165(3), 259, 262 and 264 of the Constitutionand section 29(1) of the Sixth Schedule of the Constitution by the passing of the impugned sections and as such the impugned sections were unconstitutional.

43. The decisions in Centre for Rights Education and Awareness & 2 others v Speaker of the National Assembly & 6 Others [2017] eKLR and Nick Githinji Ndichu v Clerk Kiambu County Assembly & another [2014] eKLR were cited in support of the position.

44. In submitting that this court has the power to declare the impugned sections unconstitutional, the petitioners referred to Biti & another v Minister of Justice, Legal and Parliamentary Affairs and Another (46/02) 2002 ZWSC 10 where it was observed that: -…. In constitutionality democracy it is the courts not Parliament that determine the lawfulness of actions of bodies including Parliament. In Smith v Mutaseit was specifically held that the Judiciary is the guardian of the Constitution and the rights of citizens.

45. Further reliance was placed in Commission for the Implementation of the Constitution v National Assembly of Kenya, Senate & 2 others [2013] eKLR where it was observed thus: -… The system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary.no one arm of government is infallible, and all are equally vulnerable to the dangers of acting ultra vires the Constitution, whereas the Executive and the Legislature are regular tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and elected judicial arm of government is largely self-regulatory. The parameters of encroachment on the powers of other arms of government must be therefore clearly delineated limits acknowledged and restraint fully exercised it is only through the practise of such cautionary measure that the remotest possibility of judicial tyranny can be avoided.

46. While submitting that the impugned sections were unconstitutional for failing to abide by article 10 of the Constitution, parallel was drawn to the decision in Juma Nyamawi Ndungo & 5 others v Attorney General; Mombasa Law Society (Interested Party) [2019] eKLRwhere the Court was approached with the question as to whether it was constitutional for the office of the Director of Work Injury Benefits to exercise judicial powers, including powers of adjudication of work injury claims and assessment of damages, as provided for in sections 10, 16, 23, 26, 28, 30, 33, 37, 51, 53(2)(d), 53(2)(e), 58(2) and the First Schedule to the Work Injury Benefits Act. The court held: -19. To the extent that the provisions of the Work Injury Benefits Act, in particular sections 16 and 53(2)(d), sought to transfer judicial power to the Executive, or an entity that was neither a tribunal nor a court, they violated the constitutional doctrine of separation of powers and were therefore unconstitutional.

47. The petitioners submitted that 1st respondent’s Gazette Notice No 3543 of 2020 appointing the Registrars was irregular for having its basis in an unconstitutional law.

48. To bolster the foregoing, reference was made to Civil Appeal No 239 of 2001, Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation Ltd & 2 others (1998) eKLR and Paramount Bank Ltd vs Mohammed Ghais Qureishi where it was observed that if an act is void, it is a nullity and courts will not sanction illegalities.

49. The petitioners also submitted that the failure to appoint the Registrars within one year as provided for under section 29(1) of the Sixth Schedule of the Constitution as read with article 262 of the Constitution was a further contravention of the Constitution.

50. In the end, the petitioners averred that the Parliament in the endeavouring to defeat the independence of the Office of the Registrar of Political Parties and on inordinately delaying in appointing the office holders 10 years since the effective date of the Constitution raises serious questions of law which the Court is called upon in the Petition to settle in public interest.

51. As the Petition was supported by the 9th interested party, I will, hence, venture into the 9th interested party’s case before a look at the cases for the parties who are opposed to the Petition.

The 9thInterested Party’s Case: 52. The 9th respondent, The Law Society of Kenya, (hereinafter referred to as ‘the LSK’) supported the Petition through written submissions dated 22nd September, 2020.

53. The LSK opposed the jurisdictional objection to the effect that the dispute belonged in the Employment and Labour Relations Court.

54. It submitted that under articles 2(4) and 165(3)(d) of the Constitution, the Petition was questioning the legality of 2016 Amendment Act and as such raised constitutional questions falling within the jurisdiction of this court.

55. Support was found in Federation of Women Lawyers Kenya (FIDA- K) & others v Attorney General & another (2011) eKLRwhere it was observed that: -If the process of appointment is unconstitutional, wrong, unprocedural or illegal it cannot lie for the respondents to say that the process is complete and this court has no jurisdiction to address grievances raise by the petitioners. The Jurisdiction of this courts is dependent on the process and constitutionality of the appointment.

56. Further reliance was placed in Kenya Youth Parliament & 2 others v Attorney General & 2 Others and in Trusted Society of human Rights Alliance v Attorney General & otherswhere in the latter case the court observed that: -The court is entitled to review the process of appointment to state or public offices for procedural infirmities as well as for legality. A proper review to ensure soundness of the appointment process includes an examination of the process to determine the appointing authority conducted a proper inquiry to ensure that the person appointed meets the constitutional requirement.

57. On the foregoing, LSK submitted that this court ought to assert its jurisdiction over the petition.

58. On the aspect of locus standi it was submitted that under articles 22 and 158 of the Constitution, every person including the Petitioners herein have the locus standi to institute proceedings for the protection of rights and fundamental freedoms and of the Constitution. It was submitted that public interest cases like the instant Petition encompass more than just the parties to it because public interest litigation is meant to benefit the public and not just the individual affected.

59. To buttress the foregoing, this court was referred to Timothy Otuya Afubwa & another v County Government of Trans Nzoia & 3 others (2016) eKLR where the court observed: -… Petitions on behalf of the Public have invoked the provisions of article 22(1) and 258(1) of the Constitution. The articles are so wide and the drafters of the Constitution intended that nobody would be locked out of the mercy seat of justice when his interest or those of the public are threatened.

60. In conclusion the LSK submitted that the respondents’ argument that the Petitioners have not demonstrated a threatened violation of their rights no longer hold any place. It urged the Court to dismiss the opposition to the Petition for being frivolous with costs to the petitioner.

The 1st 2nd 4th& 7th Respondents’ Case: 61. The 1st, 2nd, 4th & 7th respondents opposed the Petition. They filed grounds of opposition dated 25th August, 2020 and the replying affidavit of Simon Rotich, The Secretary and Chief Executive Officer of the PSC deponed to on 31st August, 2020.

62. In the grounds of opposition, it was the case that the Petition did not raise any constitutional issues as envisaged under the cited articles and as such should be dismissed with costs.

63. It was maintained that until the contrary is proved, a legislation is presumed to be constitutional. Further, it was submitted that it is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative.

64. It was averred that article 23 of the Constitutiondoes not expressly bar the court from granting conservatory orders where a challenge is taken on the constitutionality of legislation but ought to be one that falls under article 22 of the Constitution. It was the Respondents case that the petitioners had not attained the threshold to grant the conservatory orders sought in the main Petition.

65. In reference to the decision in {{>/akn/ke/judgment/kehc/2014/3051 Wycliffe Indalu Adieno v Attorney General & 2 others [2014] eKLR it was stated that an Applicant must go further and show that his or her allegations not only cover article 23 but also bring him or her within the provisions of article 22 as well.

66. It was the 1st, 2nd, 4th & 7th respondents case that in order to get conservatory orders, an applicant must further demonstrate that unless the orders are granted, it stands to suffer real danger or prejudice. Reliance was placed on Ahmed Isaack Hassan v Law Society of Kenya Disciplinary Tribunal & 2 others [2018] eKLR.

67. As regards the invitation to suspend the applicability of the impugned sections, it was stated that if granted it will determine the matter at the interlocutory stage. The decision in Kizito Mark Ngaywa v Minister of State for Internal Security and Provincial Administration & another [2011] eKLR where it was observed: -… It is a very serious legal and Constitutional step to suspend the operation of statutes and statutory provisions. The courts must wade with care, prudence and judicious wisdom. For the High Court to grant interim orders in this regard, I think one must at the interlocutory stay actually show that the operation of the legislative provision are a danger to life and limb at that very moment.

68. In challenging this court’s jurisdiction, it was stated that the Petition was filed in a wrong forum. It was urged that under article 162(2) of the Constitution, this court has no jurisdiction to handle any matter relating to employment and labour relations.

69. The finding in Okiya Omtatah Okoiti v Selection Panel for the National Land Commission & 3 others; Gershom Otachi Bw’omanwa & 7 others (Interested Parties) [2019] eKLR was referred to where the High Court observed that: -… Having considered the arguments above, it is my finding that this court will not interfere with the process currently before the Parliamentary Committee because the Petitioner still has a chance to raise issues he is currently raising before that committee. I therefore find that though this court has jurisdiction to entertain this Petition, by virtue of the doctrine of ripeness and exhaustion of process, I will not delve into the issues as raised at the moment.

70. In the end the respondents prayed that the Petition and Application be dismissed with costs.

71. In the replying affidavit, Simon Rotich deposed that the 2016 Amendment Act disbanded the Selection Panel which had been established under the Political Parties Act to conduct the selection exercise for the Registrars and replaced it with the Commission.

72. He deposed that under section 34A and the Sixth Schedule of the Political Parties Act, the Commission’s responsibilities are limited to advertising the vacancy, shortlisting candidates, conducting interviews, selecting and forwarding three names for each available vacancy to the President for consideration for appointment.

73. It was deposed that PSC initially advertised for the vacancies of the Registrars on September 24, 2018 and upon receiving responses, it observed that the parameters it set of competitiveness, gender, regional and persons with disabilities were not be met. Thus it re-advertised on May 15, 2020 vide Gazette No 3543.

74. It is its case that it shortlisted candidates, conducted interviews and by a letter dated July 8, 2020, it forwarded to the President the shortlisted candidates.

75. On the foregoing he deposed that the prayers sought in the matter had been overtaken by events and that the process was undertaken in accordance with the Constitution. PSC claimed that the contention by the petitioners that it is subject to control by the Executive arm of Government was untrue, baseless and without evidence as it is only subject to the law and the Constitution as provided for in article 249.

76. It was his deposition that the Petitioners have failed to impute any improper motive on the part of Parliament and the Executive in the amending the Political Parties Act in 2016.

77. He deposed that the if the petitioners had any issue with the Political Parties Act, they had over four years since the amendment was passed to challenge but has not done so

78. He further deposed that PSC had no pre-determined candidate in the process of selecting the Registrars. It was averred that PSC did not have a say on who finally gets appointed since the process involved several institutions including the Presidency who nominates one of the names forwarded from the Commission and which eventually ends up in Parliament for approval.

79. In responding to the allegation that the Commission appointed an Acting Registrar, it was deposed that the Registrar is a State Officer and the Commission does not appoint holders of state offices.

The Submissions: 80. In their written submissions, dated November 15, 2021, the 1st, 2nd, 4th and 7th respondents submitted that under section 34A and the Sixth Schedule of the Political Parties Act, PSC’s responsibilities are limited to, advertising the vacancy, shortlisting candidates, conducting interviews and selecting forwarding three names for each available vacancy to the President for consideration for appointment.

81. It was submitted that in discharging its functions PSC is bound by article 232 of the Constitution and therefore, ensures that the names forwarded met the competitiveness, gender, regional and persons with disabilities.

82. In challenging jurisdiction of this court it was submitted that Petition raised issues that were not within the jurisdiction of this honourable court as per article 162(2) as read together with section 12 of the Employment and Labour Relations Court Act.

83. It was expounded that the petitioners were challenging the appointment of the Registrars which is an employment matter under the jurisdiction of the Employment and Labour Relations Court.

84. Reliance was found in the case of Okiya Omtatah Okoiti v Cabinet Secretary for Water and Irrigation & 6 others [2016] eKLR, where the judge upon making a finding that the matter involved an employment issue, held as follows: -… In the matter, the petitioner invited the court to annul the two appointments and to compel the respondents to recruit in both positions. That the court should quash gazette notices announcing the appointment of the 1st respondent of the 2nd and 3rd interested party parties as chairman and director of the Kenya Water Institute and that the respondents should commence the recruitment process for these positions in compliance with the law.… I find the nature of the Petition herein relate to appointments and recruitment of the interested parties into positions that relate to employment and labour relations in the context where this court is clothed with the requisite jurisdiction to hear and determine. This court has the requisite jurisdiction to hear matters of constitution al interpretation, rights violations, judicial review and rights due within employment and labour relations.

85. As regards the mandate to make amendments, the respondents submitted that the legislative authority of the Republic is vested in and exercised by Parliament. Only Parliament has the powers to legislate. Reference was made in Democratic Alliance v President of the Republic of South Africa 73 others and in James Gacheru Kariuki & 19 others v County Government of Mombasa & 56 others [2019] eKLR where it was observed in the former that in the exercise of their power to review legislation, court should strive to preserve to the legislature its rightful role in a democratic society.

86. It was submitted that the petitioners had not demonstrated how the provisions of the Political Parties Act had been occasioned harm to them.

87. In submitting on propriety of the gazette notice on the appointment of the Registrars, it was submitted that it complied with the provisions under articles 10 of the Constitution on National Values and Principles and article 232 of the Constitution.

88. It was submitted that the orders sought have been overtaken by events and cannot issue at the moment since the candidates for the position of the Registrar of Political Parties and the three Deputy Registrars of Political Parties were shortlisted, interviewed and their names forwarded to the President vide a letter dated July 8, 2020 and were later appointed by the President and are now legally in office and discharging their mandates.

89. To buttress the forgoing, reliance was sought in George Olilo Mito v Joyce Oduor Nyanjom & 4 others [2020] eKLRwhere it was held that: -…. Accordingly, the petition not only fails for lack of any proper basis as per Mumo Matemucase (supra) but the same has been overtaken by events and is moot as described by Mativo J. in National Gender and Equality Commissioncase (supra).

90. It was urged that the Petition be dismissed with costs to the respondents.

The 2nd Respondent’s Case: 91. The 2nd respondent, the Registrar of Political Parties, opposed the Petition through the Replying Affidavit of Judy Gathoni sworn to on September 3, 2020.

92. It was her case that the amendments made to the Political Parties Act were as a result of article 92 of the Constitution which dictated that the Registrar receives funds for and administers the Political Parties Fund (hereinafter referred to as ‘the Fund’).

93. She deposed that the Political Parties Act established the Office of the Registrar of Political Parties and outlined the procedure of appointment of the Registrars and the responsibility of appointing the said officers.

94. It was her case that the Registrar does not participate in the process of its own appointment as well as that of the Assistants.

95. It was deposed that the Political Parties Act cannot be enforceable without a Registrar in place and for that reason, the Political Parties Act provided for transitional provisions that allow the Registrar to hold office until appointment of the substantive Registrar under section 33 of the Political Parties Act.

96. She further deposed that on administration of the Political Parties fund the People of Kenya through article 92 of the Constitution deliberately resolved to have political parties funded and as such the Petitioners’ prayers are not merited.

The 3rd Respondent’s Case: 97. Michael Sialai, the Clerk of the National Assembly opposed the Petition through his replying affidavit sworn to on September 7, 2020.

98. In giving a historical background before the PSC was given the mandate to recruit and select persons eligible for the position of Registrar, Mr Sialai deposed that the Political Parties Act in section 34A gave the ‘Selection Committee’ the mandate to appoint the Registrar.

99. It was his case that the amendment was however constitutional taking into account the principle of constitutionality of Statute as was elaborately set out in the High Court decision in Petition No 71 of 2014, The Institute of Social Accountability and another v National Assembly & 4 others and Council of Governors & 3 others v The Senate & 53 otherswhere it was held: -…. In determining whether a statute is constitutional, the court must examine the object and purpose of the impugned statute.

100. He deposed that the 2016 Amendment Act went through the regular process in the National Assembly and its principal object was to amend the Political Parties Act in order to reorganize the manner in which political parties are managed and remove ambiguities that existed in the Act.

101. He deposed that the 2016 Amendment Bill invited comments from the public by placing an advertisement in the print media on February 26, 2016 in compliance with article 118 of the Constitution.

102. It was his position that it received a memorandum from National Gender and Equality Commission and it considered their input in their final decision.

103. It was his case that in considering section 34A of the Political Parties Act, the sponsor had proposed that that section 34 thereof be amended by providing that the recruitment of the Registrar and Assistant Registrars be done by the Commission.

104. He stated that the House Committee was in agreement with the proposal and upon forwarding it to National Assembly on 17th March, 2016, it was read for the second time on 17th, 30th March 2016 and 12th April, 2016 and was referred to the Committee of the whole house on April 21, 2016.

105. He deposed that it was then read for the third time on April 21, 2016 and was accordingly passed on the same day and referred to the Senate for consideration.

106. He further deposed that The Senate referred the Bill back to the National Assembly on May 3, 2016 without any amendments. The Bill, he stated, was then assented to law by President on June 30, 2016 and gazetted on 7th July, 2017 as the Political Parties (Amendment) Act No 21 of 2016.

107. In making reference to article 94 of the Constitution, he deposed that no other entity than Parliament has the power to make provisions having force of law in Kenya and as such the petitioners’ contention that section 17 of the Political Parties Act is unconstitutional was baseless.

108. Mr Sialai stated that The National Assembly exercised power conferred upon it by article 95 and 109 of the Constitution which provides for enactment, amendment and repeal of legislation and exercise of such powers. It was his case further that the National Assembly in amending the Political Parties Act abided by the House’s Standing Orders provided for under article 124 of the Constitution.

109. While referring to Anarita Karimi Njeru v The Republicand the Mumo Matemu & another v Trusted Society of Human Rights (2013) eKLR where it was observed that a person wronged by Parliamentary proceedings cannot apply for judicial review except where an Act of Parliament is unconstitutional, he deposed that the petitioners had not discharged the burden of proof in demonstrating unconstitutionality of the impugned amendment.

110. The deponent further urged the court not to interfere with operations of other arms of Government. Reference was made to the Court of Appeal in Civil Appeal No 157 of 2009. John Haron Mwau v Andrew Mullei & others.

111. In the end, he deposed that the 2016 Amendment Act went through the requisite process of adequate public participation, which was facilitated and it was not necessary that all persons who participated had to be heard orally. Reliance was placed on the decision in Robert Gakuru & others v The Governor of Kiambu County & 3 others (2013).

112. Mr Sialai also deposed that this court could only intervene if there was a breach of the Constitution or any other law, if it was shown that the House failed to adhere to the rules of natural justice and procedure, the process leading up to the enactment is proved to be improper or illegal. To buttress the foregoing, the decision in Petition No 227 of 2013, Okiya Omtatah Okoiti & 3 Others v Attorney General & 5 others [2014] eKLR

113. In reference to the Supreme Court in Speaker of Senate & another v Attorney General & 4 others [2013] eKLR Mr Sialai deposed that this court ought not to question every procedural infraction that may occur on both Houses of Parliament, and that the courts cannot supervise the workings of Parliament.

114. In the end, he stated that the mandate of this court is confined to scrutinizing constitutionality or otherwise of any Act passed by Parliament and that jurisdiction can only be invoked in the event of breach of Constitution by Parliament.

Submissions: 115. The 3rd respondent filed undated written submissions. It generally reiterated the contents of its response.

116. It was submitted that the court must restrain itself from interfering with the operation of the Parliament based on the doctrine of Separation of Powers.

117. It was urged that this court ought to follow the dicta in the Supreme Court decision in Justus Kariuki Mate & another Martin Nyaga Wambora & anotherwhere it was observed that: -The integrity of court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution, is essential as a scheme of circumventing conflict and crisis in discharge of Governmental responsibility.

118. In asserting constitutionality of the impugned sections, it was submitted that the there was a presumption of constitutionality and the burden of proof of violation of Constitution was on the petitioner. The Tanzanian decision in Nyabo v Attorney General of Tanzania [2001] EA 495 was cited where it was observed thus: -….. Until contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative.

119. Further support was found in the Ugandan decision in Olum & another v Attorney General [2002] EA where it was observed that: -To determine the constitutionality of an Act of Parliament the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of the implementation.

120. In conclusion, it was submitted that the entire process of amending the impugned sections was done in observance of the Law and the Constitution, the requisite processes and as such this court’s exercise of jurisdiction can only be invoked in the event there was breach by Parliament of the Constitution.

121. The 3rd respondent submitted that the Petition was in bad faith, lacked merit and is an abuse of the process of court and as such it be dismissed with costs.

The 5th Respondent’s Case: 122. The 5th respondent, Jubilee Party, filed grounds of opposition dated September 8, 2020. It was in response to the petitioner’s notice of motion application for conservatory orders which was withdrawn in favour to the main Petition.

123. It however filed written submissions dated August 19, 2021 in opposition to the Petition. It associated itself largely with the 3rd respondent’s position.

124. It submitted that article 92 of the Constitution bestowed upon Parliament the responsibility to enact legislation on political parties. To the extent that the National Assembly exercised it constitutional mandate under article 94 of the Constitution, it stated that that petitioners did not demonstrate the specific manner in which the respondents engaged in administrative action in violation of article 47 of the Constitution.

125. It was its case that the petitioners did not demonstrate or disclose any real and imminent or threat to the Constitution to necessitate declaration of unconstitutionality of the impugned sections.

126. The 5th respondent amplified the need to abide by the principle of separation of powers and to that end referred to The Law Society of Kenya v Attorney General & another, National Commission for Human Rights & another (Interested Parties)(2020) eKLR.

127. On the foregoing, it was submitted that the orders sought in the Petition are contrary to public interest. This court was urged to be forward looking and consider the effects that any retrospective action will have on the copious decisions that have already been made and implemented as a result of the impugned provisions.

128. It was submitted that the Amended Petition be dismissed.

The 6th Respondent’s Case: 129. Jeremiah Nyegenye, The Clerk of the Senate swore a replying affidavit on September 30, 2020 in opposition to the Petition.

130. In substance, its case was, by and large, the same as that of the 3rd respondent. It deposed that the Petition is an affront to the legislative role of Parliament under article 1(1), 92, 94, 95 and 109 of the Constitution.

131. He urged the court to rely on the finding in The Institute of Social Accountability & another v National Assembly & 4 others (supra) in its quest for establishing constitutionality of the impugned statute.

132. It was his deposition that the public participation was facilitated in accordance with articles 118 and 124 of the Constitutionand that all the other procedural steps necessary for enactment of legislation were observed in amending the impugned legislation.

133. He deposed that it included inviting comments from public, tabling of Bill before Parliament in observance of Standing Orders, 1st reading, committal to Legal Assembly’s Departmental Committee on Justice and Legal Affairs, 2nd and 3rd readings and submitting it to The Senate for its input.

134. He claimed that the Political Parties Bill 2016 was then assented to by the President on June 30, 2016 and Gazetted on July 7, 2016 as Political Parties (Amendment) Act No 2 of 2016 in due observance of the Constitution and the law.

135. It was its case that the petitioners’ contention of unconstitutionality of the impugned sections was baseless and without any justification in law.

136. Mr Nyegenye resoundingly reiterated the Supreme Court finding in The Speaker of Senate & another v Attorney General & 4 others(2013) eKLR that courts ought not to question each and every procedural infraction that may occur in either House of Parliament.

137. In urging this court to uphold the principle of Separation of Powers, he deposed that the Supreme Court in Justus Kariuki Mate & another v Martin Wambora(supra) developed the following principles of separation of powers, and, as follows: -a.Each arm of Government has an obligation to recognize the independence of other arms of Government.b.Each arm of Government is under duty to refrain from directing another organ on how to exercise its mandate.c.The courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity in the exercise of judgment.d.For the due functioning of constitutional governance, the courts are guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objectives needs and public interest attending each case.e.In the performance of the respective functions, every arm of Government is subject to the law.

138. On the foregoing, it was submitted that the Petition was bad in law, baseless and an abuse of court process and should be dismissed with costs.

139. In its written submissions dated July 26, 2016 the 6th respondent essentially reproduced the contents of Mr Nyegenye’s depositions verbatim.

140. Save for the foregoing parties, the rest of the parties named in the Amended Petition did not participate in these proceedings.

Issues for Determination: 141. Having carefully perused the voluminous documents filed in this matter, I hereby discern the following issues for consideration: -a.Whether this court is seized of jurisdiction over the Petition.b.In the event the answer to (a) above is in the affirmative, a consideration of the settled principles in constitutional interpretation and the principles in determining the constitutionality of statutes.c.Whether the impugned sections are unconstitutional to the extent of infringing the national value and principle of good governance under article 10 of the Constitution.d.What remedies, if any, should issue?

142. I will deal with the issues in seriatim.a.Whether this court is seized of jurisdiction over the Petition:

143. The details of the objection to the jurisdiction of this court have been captured in the parties’ cases.

144. In a nutshell, it is contended that the dispute before court ought to be instead dealt with by the Employment and Labour Relations Court and not the High Court.

145. The issue as to whether the Employment and Labour Relations Court is competent to deal with disputes relating to infringement of rights and fundamental freedoms was once again and so recently dealt with by the Court of Appeal in Nakuru Civil Appeal No 119 of 2017 Public Service Commission & 2 others v Eric Cheruiyot & 16 others consolidated with Civil Appeal No 139 of 2017 County Government of Embu & another v Eric Cheruiyot & 15 others (unreported). The decision was rendered on February 8, 2022.

146. Speaking to the doctrine of jurisdiction in general, the Court of Appeal stated with precision as follows: -36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

37. The locus classicuson jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.38. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.

39. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.40. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68. ) A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

147. On the jurisdiction of the Employment and Labour Relations Court, the Court of Appeal began the discussion by capturing article 162 of the Constitution and section 12 of the Employment and Labour Relations Court as follows: -41. Article 162 of the Constitution provides for the establishment of the Employment and Labour Relations Court and its jurisdiction thereof. It reads as follows:

“162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).(2)Parliament shall establish courts with the status of the High Court to hear and determine dispute relating to-a.employment and labour relations; andb.the environment and the use and occupation of, and title to land. 3. Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).

4. ….”42. It is pursuant to the provisions of article 162(2) of the Constitution that Parliament enacted the Employment and Labour Relations Court Act, 2011.

43. The jurisdiction of the Employment and Labour Relations Court is provided for under section 12 of the Employment and Labour Relations Court Act, 2011. The provisions of section 12(1) of this Act provides as follows:“12. (1) The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written law which extend jurisdiction to the Court relating to employment and labour relations including-

a.disputes relating to or arising out of employment between and employer and an employee;b.disputes between an employer and a trade union;c.disputes between employers’ organization and a trade union’s organisation;d.disputes between trade unions;e.disputes between employer organisations;f.disputes between an employer’s organization and trade union;g.disputes between a trade union and a member thereof;h.disputes between and employer’s organization or a federation and a member thereof;i.disputes concerning the registration and election of trade union officials; andj.disputes relating to the registration and enforcement of collective agreements.”[Emphasis supplied]

148. The court then rendered a succinct interpretation as follows: -44. Our interpretation of the provisions of section 12 of the Employment and Labour Relations Court Act is that the Employment and Labour Relations Court has jurisdiction to entertain any dispute or any contemplated dispute under section 12(1) but the dispute between the parties must be related to their employment and/or touching on labour relations. This is therefore to mean that the jurisdiction of the Employment and Labour Relations Court is not limited to the determination of disputes arising out of a contract of employment between an employee and an employer, the court can also determine any constitutional violations of the rights of any party arising from an employee-employer relationship. However, for the Court to entertain a petition premised on the breach of a party’s fundamental rights under the Constitution, the alleged constitutional breach must be ancillary and incidental to the matters contemplated under section 12 of the Act. Our view is fortified by the preamble to the Employment and Labour Relations Court Act, 2011 which provides that it is “An Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes.”

49. In the absence of an employee-employer relationship, it is our considered view that the court that had jurisdiction to entertain and determine the issues raised in the consolidated petitions was in fact the High Court. The establishment of the High Court is found at article 165(1) of the Constitution. Under article 165(3), the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been violated, infringed or threatened. Under article 165(d)(i), the High Court has jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution.

50. The issues raised in the consolidated petitions, especially the issue relating to the constitutionality of section 43(5) of the Elections Act, 2011 are the kind of issues contemplated under article 165(3)(d) of the Constitution determination of which would be within the exclusive constitutional mandate of the High Court. This is jurisdiction flowing directly from the Constitution, which the Supreme Court alluded to In the matter of Interim Independent Electoral Commission (supra) and Samuel Kamau Macharia & another (supra).

51. The Constitution appreciates that there are matters within the exclusive jurisdiction of the High Court on the one hand and those reserved and/or falling within the jurisdiction of the courts contemplated in article 162(2) on the other hand, notwithstanding the fact that the latter courts enjoy the same status as the High Court. This court in Karisa Chengo & 2 others v Republic [2015] eKLR held thus:“…The jurisdiction of the High Court as established under article 165 of the Constitution is limited in two fronts. First, it shall not exercise jurisdiction on matters reserved for the Supreme Court and matters falling within the jurisdiction of the two Courts contemplated in article 162(2). It is therefore clear that the High Court no longer had the original and unlimited jurisdiction in all matters as it used to have under the repealed Constitution. It cannot deal with matters set out under section 12 of the ELRC Act and section 13 of the ELC Act. Conversely, the courts contemplated in article 162(2) of the Constitution cannot deal with matters reserved for the High Court.”

52. This court in the Karisa Chengo case (supra) held that status of a court is not synonymous to jurisdiction. In this context therefore, although the Employment and Labour Relations Court exercises the same power as the High Court in performance of its judicial functions, it has specialized jurisdiction and is not the High Court. It is important to point out that the finding of this court in the Karisa Chengo case was upheld by the Supreme Court.

53. Therefore, for want of an employee-employer relationship, we find and hold that the Employment and Labour Relations Court arrogated itself jurisdiction that exceeded that conferred upon it by law, which renders its decision a nullity ab initio.

149. Applying the foregoing to this matter, the respondents have not demonstrated any employer-employee relationship between any of the Petitioners and the respondents. Further, the main issue before court is the constitutionality or otherwise of the impugned sections of the 2016 Amendment Act. The issues raised in the Petition in this matter have nothing to do with any of the matters falling within section 12 of the Employment and Labour Relations Act. Under article 165(3)(d)(i) of the Constitution, it is the High court which has jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution.

150. It is, therefore, legally inconceivable for even an assumption that it is the Employment and Labour Relations Court which is seized of the jurisdiction in this matter, to fall from the lips of any of the parties.

151. The upshot is, hence, that it is the High Court which is seized of jurisdiction to hear and determine the issues raised in the Petition.

152. The first issue is answered in the affirmative.(b)A general brief consideration of the settled principles in constitutional interpretation and the principles in determining the constitutionality of statutes:

153. This issue is aimed at laying a solid basis for the consideration of the rest of the issues in this matter given that the Petition calls for the interpretation of the Constitution in light of whether the impugned sections are constitutional.

154. I will begin this discussion with a look at the manner in which the Constitution is to be interpreted.

155. The Court of Appeal in Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR) (Civ) (19 November 2021) (Judgment) endeavoured a fabulous discussion in the manner a court ought to approach the subject of constitutional interpretation. The Court yielded as follows: -42. Our starting point in this regard is article 259 of the Constitution, which obligates us to interpret the Constitution in a manner that: -

a.promotes its purposes, values and principles;b.advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.permits the development of the law; and(d)contributes to good governance.” 43. It is notable in this respect that constitutional interpretation includes both interpretation and construction. As explained by Vincent Crabbe in his text Legislative Drafting: Volume 1 at pages 231 to 233, interpretation entails discovering the meaning of words used in a statutory or other written document, and is of various types. Authentic interpretation is used when the meaning of a word is expressly provided for in the document; usual or customary interpretation when based on accepted usages of the word; doctrinal, when it is based on the grammatical arrangement of the words in a sentence; and logical, when based on the intention of Parliament. Crabbe also pointed out that logical interpretation can be liberal or strict.

44. Construction of a legal provision on the other hand is wider in scope than interpretation, and is directed at the legal effect or consequences of the provision in question. Interpretation must of necessity come before construction, and having ascertained the meaning of the words, one construes them to determine how they fit into the scheme of the law or legal document in question. Crabbe in this respect opines that a Constitution is in this respect different from an Act of Parliament, and describes it as a living organism capable of growth and development. In his words “a constitution is a mechanism under which laws are made, and not a mere Act which declares what the law should be”

45. We are persuaded by this explanation, and indeed the approach suggested therein has been adopted by the Kenyan Courts. A holistic and purposive interpretation of the Constitution that calls for the investigation of the historical, economic, social, cultural and political background of the provision in question has been consistently affirmed by the courts. The Supreme Court in this respect explained the approach in constitutional interpretation in Council of Governors v Attorney General & 7 others [2019] eKLR as follows:“[42]Under article 2(1), the Constitution is the Supreme law of the land. Article 259 of the Constitution then gives the approach to be adopted in interpreting the Constitution, basically in a manner that promotes its purposes, values and principles. Suffice it to say that in interpreting the Constitution, the starting point is always to look at article 259 for it provides the matrix, or guiding principles on how it is to be interpreted and then article 260 where specific words and phrases are interpreted. It is imperative to note that while article 259 deals with construing of the Constitution and outlines the principles that underpin that act; article 260 deals with interpretation, that is, it is explicit in assigning meaning to the words and phrases it addresses. Hence the opening words in that article are: “In this Constitution, unless the context requires otherwise-”.[43]Consequently, in search of the meaning assigned to some words and phrases as used in the Constitution, one needs to consult article 260 to find out if that particular term or phrase has already been defined. It is only where the same has not been defined that the court will embark on seeking a meaning by employing the various principles of constitutional interpretation.….”

46. The various principles of constitutional interpretation have also been the subject of different decisions of this court and the Supreme Court. In Re the Matter of Kenya National Commission on Human Rights [2014] eKLR, the Supreme Court considered the meaning of a holistic interpretation of the Constitution, and stated:“[26]But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

47. This view was also expressed by the Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others, [2015] eKLR, that “the Constitution should be interpreted in a holistic manner, within its context, and in its spirit.”48. A purposive interpretation on the other hand acknowledges that the meaning of language is imprecise, and measures words against contextual, schematic, and purposive considerations. Aharon Barak in the text“Purposive Interpretation in Law” at page 111 explains that:“According to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose).” 49. As such, the purposive interpretation avoids the shortcomings of the literal approach, namely absurd interpretations or those that appear to run counter to the purpose and functioning of the legislative regime. The Supreme Court of Kenya in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others,[2014] eKLR, confirmed that a purposive interpretation should be given to statutes so as to reveal their true intention. The Court observed as follows:“In Pepper v Hart[1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:‘The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted’.”

50. The persuasive decision of this court in the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu[2015] eKLR is also illuminating, and it was held therein that:“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.” 51. The Constitution in this respect provides the purposes that should guide the courts in interpreting it in article 259, including the purpose of the specific provisions, and broader rule of law and good governance objectives.

52. It is with these principles in mind that we shall proceed to consider the issues raised in this appeal.

156. Turning on to the applicable criterion in determining whether a statute is constitutional, this Court discussed three guiding principles in Nairobi High Court Petition No E327 of 2020 Law Society of Kenya v Attorney General & another (2021) eKLR as follows: -104. I will also look at the decision in R v Oakes. The brief facts are that the respondent, David Edwin Oakes, was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge made a finding that it was beyond a reasonable doubt that the respondent was in possession of a narcotic, the respondent brought a motion challenging the constitutional validity of s 8 of the Narcotic Control Act. That section provides that if the court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused's establishing the contrary, he or she must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a "reverse onus" clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s 11(d) of the Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional question was stated as to whether s 8 of the Narcotic Control Act violated s 11(d) of the Charter and was therefore of no force and effect. Inherent in this question, given a finding that s 11(d) of the Charter had been violated, was the issue of whether or not s 8 of the Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s 1 of the Charter.

105. The appeal was dismissed and the constitutional question answered in the affirmative. In so holding, the Supreme Court of Canada, then presided by the Chief Justice in a Seven-Judge bench discussed the criteria in ascertaining the manner in which a limitation to a right or fundamental freedom may be justified. The court came up with a three-pronged criteria. First, the objective which the limitation is designed to serve. Second, the means chosen to attain the objective must be reasonable and demonstrably justified. This is the proportionality test. Third, the effect of the limitation.

106. On the objective test, the Supreme Court stated as follows: -67. To establish that a limit is reasonable and demonstrably justified in a free and democratic society, …… the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R v Big M Drug Mart Ltd, supra, at p 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

107. On the proportionality test, the Supreme Court stated that: -70. Second, once a sufficiently significant objective is recognized, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R v Big M Drug Mart Ltd, supra, at p 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R v Big M Drug Mart Ltd, supra, at p 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

108. On the third test, that is the effect of the limitation, the Supreme Court stated that: -71. With respect to the third component, it is clear that the general effect of any measure impugned under s 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

157. With such a foundation, I will now deal with the rest of the issues.(c)Whether the impugned sections are unconstitutional to the extent of infringing the national value and principle of good governance under article 10 of the Constitution:

158. The petitioners main contention in this matter is effect of the 2016 Amendment Act on the impugned sections. As earlier on stated, they contended that amendments had the effect of replacing a Selection Panel with the PSC in the recruitment of the Registrars.

159. To the petitioners, the PSC is part of the Executive arm of the Government and as such it is liable to manipulation with the result that the Executive will influence the choice of the Registrars. The petitioners decry the lack of independence on the part of the PSC and posited that the amendments ate into the fabric of good governance under article 10 of the Constitution.

160. A keen look at this issue reveal the following three sub-issues: -i.The nature of the PSC;ii.The status of the Registrar and Assistant Registrars of Political Parties.iii.The infringement of article 10 of the Constitution.

161. These sub-issues will aid in the determination of the main issue.

The nature of PSC:__ 162. The PSC is a creation of the Constitution. It was born out of article 233 of the Constitution.

163. Article 234(2),(4) and (5) of the Constitution provide some of the powers and functions of PSC as follows: -(2)The Commission shall—(a)subject to this Constitution and legislation—(i)establish and abolish offices in the public service; and(ii)appoint persons to hold or act in those offices, and to confirm appointments;(b)exercise disciplinary control over and remove persons holding or acting in those offices;(c)promote the values and principles referred to in articles 10 and 232 throughout the public service;(d)investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;(e)ensure that the public service is efficient and effective;(f)develop human resources in the public service;(g)review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;(h)evaluate and report to the President and Parliament on the extent to which the values and principles referred to in articles 10 and 232 are complied with in the public service;(i)hear and determine appeals in respect of county governments’ public service; and(j)perform any other functions and exercise any other powers conferred by national legislation.(4)The Commission shall not appoint a person under clause (2) to hold or act in any office on the personal staff of the President or a retired President, except with the consent of the President or retired President.(5)The Commission may delegate, in writing, with or without conditions, any of its functions and powers under this Article to any one or more of its members, or to any officer, body or authority in the public service.

164. As a key player in the public service, PSC is further bound by the values and principles of public service in article 232 of the Constitution. They are as follows: -232. Values and principles of public service

(1)The values and principles of public service include—(a)high standards of professional ethics;(b)efficient, effective and economic use of resources;(c)responsive, prompt, effective, impartial and equitable provision of services;(d)involvement of the people in the process of policy making;(e)accountability for administrative acts;(f)transparency and provision to the public of timely, accurate information;(g)subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;(h)representation of Kenya’s diverse communities; and(i)affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of—(i)men and women;(ii)the members of all ethnic groups; and(iii)persons with disabilities.(2)The values and principles of public service apply to public service in—(a)all State organs in both levels of government; and(b)all State corporations.(3)Parliament shall enact legislation to give full effect to this article.

165. And, PSC as a constitutional commission, Chapter 15 of the Constitution which provides for Commissions and Independent offices, wholly applies to it.

166. The objects of the Commissions and Independent offices are provided for under article 249(1) of the Constitutionas follows: -(1)The objects of the commissions and the independent offices are to—(a)protect the sovereignty of the people;(b)secure the observance by all State organs of democratic values and principles; and(c)promote constitutionalism.(2)The commissions and the holders of independent offices—(a)are subject only to this Constitution and the law; and(b)are independent and not subject to direction or control by any person or authority.(3)Parliament shall allocate adequate funds to enable each commission and independent office to perform its functions and the budget of each commission and independent office shall be a separate vote.

167. Article 252(1) of the Constitution provides further powers functions of the Commissions and Independent offices as under:Each commission, and each holder of an independent office—(a)may conduct investigations on its own initiative or on a complaint made by a member of the public;(b)has the powers necessary for conciliation, mediation and negotiation;(c)shall recruit its own staff; and(d)may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.

168. Article 253 of the Constitutionasserts the legal status of Commissions and Independent offices as separate body corporates with perpetual succession and seals, capable of suing and being sued in their respective corporate names.

169. There is a legislation that was contemplated under article 232(3) of the Constitution. That legislation was duly enacted into law on April 7, 2017. It is the Public Service Commission Act, No 10 of 2017 (hereinafter referred to as ‘the PSC Act’).

170. The Preamble to the PSC Act states as follows: -An Act of Parliament to make further provision as to the functions, powers and the administration of the Public Service Commission established under article 233 of the Constitution; to give effect to article 234 of the Constitution and for connected purposes

171. Section 3 of the PSC Act is on the scope and application of the Act. It provides that subject to articles 155(3)(a), 158(3), 234(2)(a), 234(3) and 252(1) of the Constitution and section 28 of the Kenya Defence Forces Act (No 25 of 2012), the PSC Act shall apply to all public bodies and persons holding office in the public service.

172. In section 4, the PSC Act provides the Commission’s guiding principles in fulfilling its mandate. It states that the Commission is guided by the national values and principles of governance in article 10 of the Constitution and the values and principles of public service in article 232 of the Constitution.

173. Further powers and functions of PSC are provided for in Section 5 of the PSC Act as under: -5. Powers of the Commission generallyThe Commission has power to —(a)issue summons as may be necessary for the fulfilment of its mandate;(b)require that statements be given under oath or affirmation and to administer such oath or affirmation;(c)obtain, by lawful means, information it considers relevant, including requisition of reports, records, documents and any information from a person, including public bodies, and to compel the production of such information for the proper discharge of its functions;(d)interview a person or group of persons;(e)call upon a person to meet with the Commission or its staff, or to attend a session of the Commission subject to adequate provision being made to meet the expenses for that purpose;(f)compel the attendance of a person who fails to respond to a request of the Commission to appear before the Commission and to answer questions relevant to the subject matter of the session or hearing;(g)acquire, hold, charge and dispose movable and immovable property;(h)conduct audits in a public institution except those institutions excluded under article 234(3) of the Constitution, in order to establish the level of compliance of such institutions with the values and principles in articles 10 and 232 of the Constitution;(i)require any public institution to provide a special report on matters relating to the institution's compliance with the values and principles in articles 10 and 232 of the Constitution; and(j)do or perform all such other things or acts for the proper discharge of its functions under the Constitution, this Act and any written law as may lawfully be done or performed by a body corporate.

174. Constitutionally speaking, PSC, as a constitutional commission is, therefore, only subject to the Constitution and the law. It is an independent entity and it is not subject to direction or control by any person or authority.

175. The fear by the petitioners of the Executive arm of Government overbearing itself on the Commission and the lack of independence of the PSC, is hence, well taken care of by the Constitution. As to whether the Commissioners of PSC stand up to the said constitutional expectation, that is another subject altogether which is currently not under consideration in this matter. Even if this Court is to assume that the said fear is real, still the Constitution provides for appropriate safeguards and remedies thereto.

176. This court must also correct a false impression rendered by the Petitioners. It was contended that PSC is an entity in the Executive and under the Ministry of Public Service, Youth and Gender.

177. Article 130 of the Constitution provides for the composition of the Executive. The Executive arm of Government in Kenya is comprised of the President, the Deputy President and the Cabinet. Therefore, there is no constitutional commission which can operate as part of the Executive under the current constitutional design. The Petitioners’ perception is, hence, misplaced and a misapprehension of the law.

178. As I come to the end of this sub-issue, it is worth recalling that the struggle for a new constitutional dispensation in Kenya took such a long time and costed the lives of some Kenyans. The journey also visited immense suffering to many others. The Constitution is a product of extreme hard work and it is what Kenyans wanted to be governed under. The Constitution must, therefore, be jealously defended by all and sundry as its calling in article 3 thereof.

179. On the same breath, the people of Kenya must also have faith in the institutions created under the Constitution. Such institutions must be accorded room and support in discharging their mandates. Any dissatisfaction over the institutions must be dealt with under the Constitution and the law. That is the essence of the Rule of Law as espoused in article 10 of the Constitution.

180. General and unsubstantiated attacks and unfounded victimization of the institutions cannot be in the best interests of such institutions and the Constitution which created them.

181. Having said so, I now deal with the next sub-issue.The status of the Registrar and Assistant Registrars of Political Parties:

182. The positions of the Registrars are not provided for in the Constitution. Therefore, the Registrars are not constitutional office holders.

183. The said positions are, however, provided for in the Political Parties Act. Section 33 of thePolitical Parties Act establishes the Office of the Registrar of Political Parties as follows: -33. Establishment of the Office of Registrar

(1)There is established, the Office of the Registrar of Political Parties which shall be a body corporate with perpetual succession and a seal and which shall be capable of suing and being sued in its corporate name.(2)The Registrar shall be deputised by three Assistant Registrars, not more than two of whom shall be of the same gender.(3)The Office of the Registrar shall be a State office within the meaning of article 260 of the Constitution.(4)The Office of the Registrar may engage such staff, experts or consultants as are necessary for the proper and effective discharge of its functions under this Act and any other written law.(5)The Office of Registrar shall be independent and shall not be subject to direction or control of any person or authority.(6)A person shall be qualified for appointment as Registrar or as an Assistant Registrar if the person—(a)holds a degree from a university recognised in Kenya;(b)has proven knowledge and experience in any of the following fields—(i)finance;(ii)management;(iii)political science;(iv)law;(v)governance; or(vi)public administration;(c)has, in the case of the Registrar, at least fifteen years post qualification experience in the relevant areas of expertise and, in the case of an Assistant Registrar, has at least ten years post qualification experience in the relevant area of expertise; and(d)is a person of high moral character and integrity and has satisfied the requirements of Chapter Six of the Constitution.(7)A person shall not be qualified for appointment as a Registrar or Assistant Registrar if the person has, at any time within the preceding five years, held office or stood for election as a member of Parliament or a county assembly or as a member of a governing body of a political party.(8)The Registrar and Assistant Registrars shall, before assuming office, take and subscribe to the oath or affirmation prescribed in the Fourth Schedule.(9)The Registrar and Assistant Registrars shall serve for a non-renewable term of six years and shall not be eligible for re-appointment.(10)A person who serves as a Registrar or Assistant Registrar shall not be eligible to contest for election as a member of Parliament or a county assembly, or as a member of a governing body of a political party within five years of the person ceasing to be Registrar or Assistant Registrar.

184. The functions of the Registrar are provided for in section 34 of the Political Parties Act as follows: -34. Functions of the Registrar

The functions of the Registrar shall be to—(a)register, regulate, monitor, investigate and supervise political parties to ensure compliance with this Act;(b)administer the Fund;(c)ensure publication of audited annual accounts of political parties;(d)verify and make publicly available the list of all members of political parties;(e)maintain a register of political parties and the symbols of the political parties;(f)ensure and verify that no person is a member of more than one political party and notify the Commission of his findings;(g)investigate complaints received under this Act; and(h)perform such other functions as may be conferred by this Act or any other written law.

185. The law makes it clear that the Office of the Registrar is a body corporate with perpetual succession and a seal and which shall be capable of suing and being sued in its corporate name. The Office is also a State office within the meaning of article 260 of the Constitution.

186. The Registrars are, hence, both State officers and public officers and just like the rest, they are also bound by the Constitution and the law. They take oath or affirmation of office before assumption of duties and are, as well, liable to removal from office.

187. Both the Constitution and the law has it that the Office of Registrar, as a State office, shall be independent and shall not be subject to direction or control of any person or authority.

188. The Constitution and the law, therefore, ring-fences the independency of the Registrars.

The infringement of article 10: 189. The petitioners’ contended that the Registrars ought to be appointed through the former process before the enactment of the 2016 Amendment Act. The former process was by way of a Selection Panel which was replaced by the recruitment through the PSC.

190. I have carefully perused the RSC Act. It is the position that the Registrar is not the only State and public officer who is appointed through the PSC. They are many others including Principal Secretaries and other senior Government officers in the public service.

191. In this matter, the petitioners seem not to have any problem with the appointment of the rest of the senior Government officers who are recruited through the Commission, but the Registrar.

192. The petitioners have, however, not given any reasons for the distinction. In such a case, the court is called upon to remain vigilant and not to perpetrate an unjustified discrimination.

193. For the petitioners to succeed in their quest, it was incumbent upon them to tender evidence in singularly flouting the process of appointment of the Registrars who are among many other State officers whose appointments are made through the PSC. The inevitable question that arises is how come that the Petitioners are at peace with the rest of the officers appointed through the PSC but the Registrar.

194. As said, the Office of the Registrar is one among many in the public service. One of the main constitutional mandates of the PSC is to ensure that proper persons are recruited and appointed into the public service.

195. A close scrutiny of the manner in which persons are appointed into public service in Kenya reveals that there is no uniform mode of recruitment and appointment into public service. In some cases, the recruitments and appointments are through selection panels and in some through other entities. For instance, the appointment of the Hon Chief Justice of the Republic of Kenya is through the Judicial Service Commission whereas the appointment of Commissioners of the Independent Elections and Boundaries Commission is done through a selection panel.

196. As a point of emphasis, for one to, therefore, succeed in impugning a certain mode of appointment of officers into office, there has to be credible allegations and evidence of breach of the Constitution and the law in adopting that particular process.

197. The Petitioners in this case have mainly averred but failed to prove the allegations. The standard of proof required in constitutional Petitions as set by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR was, hence, not attained.

198. The petitioners have also failed to demonstrate how the appointment process is contra article 10 of the Constitution.

199. The petitioners have not applied themselves to the criterion of determining the constitutionality of statutes as dealt with in Law Society of Kenya v Attorney General & another case (supra). The Petitioners pleaded and left it at that.

200. I believe I have said enough to demonstrate that there is no evidence of violation of article 10 of the Constitutionin the circumstances of this case.

201. The issue is, therefore, answered in the negative.

202. As I come to the end of this discussion, I will deal with two others issues raised by the petitioners.

203. They are on the administration and devolving of the Political Parties Fund and the devolution of the internal dispute resolution mechanism process under section 40(2) of the Political Parties Act.

The administration and devolving of the Political Parties Fund: 204. Part III of the Political Parties Act provide for the funding and accounts of political parties. The Political Parties Fund (hereinafter referred to as ‘the Fund’) is established under Section 23 of thePolitical Parties Actand its administration is in the hands of the Registrar courtesy of sections 23 and 34 of the Political Parties Act.

205. The petitioners have urged this court to direct the Parliament to amend section 25 of the Political Parties Act so as to provide for the devolution of the Fund.

206. Section 25 of the Political Parties Act provides as follows: -25. Distribution of the Fund

(1)The Fund shall be distributed as follows—(a)eighty per cent of the Fund proportionately by reference to the total number of votes secured by each political party in the preceding general election;(aa)fifteen per cent of the Fund proportionately to political parties qualifying under paragraph (a) based on the number of candidates of the party from special interest groups elected in the preceding general election; and(b)five per cent for the administration expenses of the Fund.(2)Notwithstanding subsection (1), a political party shall not be entitled to receive funding from the Fund if—(a)the party does not secure at least three per cent of the total number of votes at the preceding general elections; or(b)more than two-thirds of its registered office bearers are of the same gender;(ba)the party does not have, in its governing body, representation of special interest groups;(c)the party does not have at least —(i)twenty elected members of the National Assembly; and(ii)three elected members of the Senate; and(iii)three elected members who are Governors; and(iv)forty members of County Assemblies.(2A)For purposes of this section, "office bearers" means national and county officials elected or nominated by a political party in accordance with the party constitution.(3)For purposes of subsections (1)(a) and (2)(a), the total number of votes secured by a political party shall be computed by adding the total number of votes obtained in the preceding general election by a political party in the election for the President, members of Parliament, county governors and members of county assemblies.

207. The foregoing provision is on the administration of the Fund. The law recognises the office bearers of political parties as the national and county officials elected or nominated by a political party in accordance with the party constitutions.

208. Once the Registrar allocates and disburses the money to the qualifying parties, then its role ends there. The internal administration of political parties does not lie with the Registrar save in specific instances where the law designates some roles.

209. The manner in which the funds allocated to a political party are put to use is, hence, firmly within the confines of a political party. As stated, the law recognises the officials of the parties as both the national and county officials whether elected or nominated.

210. The petitioners are members of a political party or parties. If they find difficulties in the manner of administration of the funds within their party or parties, then the law and the very parties provide for internal disputes resolution mechanism which the petitioners ought to utilise. The petitioners cannot invite the court to manage the internal affairs of political parties.

211. This court does not, therefore, find any merit on the need to devolve the fund given the nature and scope of operations of the Fund.

The devolution of the Political Parties Disputes Tribunal: 212. The petitioners have also called upon this court to look into taking steps on the devolution of the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’). They decry the difficulties litigants have to endure and expenses they incur as they access the Tribunal in Nairobi mostly after party primaries.

213. There is no doubt that the plea rests on article 48 of the Constitution. It is a call for justice to all.

214. Article 48 of the Constitutionplaces a duty on the State to ensure access to justice for all persons and, if any fee is required, it be reasonable and not to impede access to justice.

215. To ensure that the Judiciary discharges its functions as called upon by the Constitution and the law, article 172 of the Constitution created the Judicial Service Commission as one of the constitutional commissions.

216. One of the functions of the Judicial Service Commission is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.

217. This court is aware that the Judicial Service Commission is in the process of recruiting more members of the Tribunal. Since the Judicial Service Commission is not a party in this matter, this court is not able to benefit from the plans the Commission has in place for the Tribunal.

218. Be that as it may, there is still hope on the matter. I say so because further to the steps undertaken by the Judicial Service Commission, the Hon Chief Justice of the Republic of Kenya is steadily championing her vision for the Judiciary. The Vision is: Social Transformation through Access to Justice (STAJ).

219. The aspect of access to justice is, therefore, at the heart of the Hon Chief Justice of the Republic of Kenya. It is common knowledge the Hon Chief Justice took office just some few months ago. There is need for this court to, hence, exercise restraint and to accord the necessary players time as they deal with the matter.

220. It is on the foregoing that this court finds it imprudent to grant the prayers sought by the petitioners on the devolution of the Tribunal at this point in time.

Disposition: 221. As the amended petition is largely unsuccessful, there is no need to consider the limb on remedies.

222. Given that the matter was filed in furtherance of public interest, no party shall shoulder the costs thereof.

223. In the end, the following final orders hereby issue: -a.The amended petition dated February 4, 2021 is hereby dismissed.b.Each party to bear its own costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2022. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:The Petitioners in person.Mr. Marwa, Learned State Counsel instructed by the Honourable Attorney General for the 1st, 4th and 7th Respondents.Mr. Wakhokho, Learned Counsel for the 2nd Respondent.Miss. Otieno, Learned Counsel for the 3rd Respondent.Mr. Wambulwa, Learned Counsel for the 6th Respondent.Elizabeth Wanjohi – Court Assistant.